EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

07.02.10

Freedom Defenders Look at the Glass Half Full in the Bilski Aftermath

Posted in Free/Libre Software, IBM, Law, Patents at 9:17 am by Dr. Roy Schestowitz

John Paul Stevens, SCOTUS photo - portrait
John Paul Stevens retires at the age of 90 as the Bilski decision comes out

Summary: A look at the (mostly) positive analyses resulting from the ruling where Stevens was unable to convince a majority of his peers to pull the plug on software patents

THIS is probably our last post that summarises responses to the decision from SCOTUS.

Our goal is to inform readers of interpretations that relevant groups have shared regarding the Bilski case, so it’s more of an overview that encourages to read further into the references. As I started before, IANAL (I am not a lawyer), so I will make no attempt to interpret the document myself and insinuate that my verdict is an informed one. Others who are not lawyers/paralegal researchers do attempt to do just that and they drown out the signal.

“The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling.”Major publications like the New York Times and Washington Post have both covered this ruling [1, 2], which threw out the patent of Bernard Bilski (that is probably the only fact we know for sure).

The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling. In fact, the decision was a very close one and there was a 4-to-5 vote at end.

Pogson offers some reflections on Bilski. He is a Free software proponent and not a lawyer but a teacher and engineer.

The only way this issue can be settled promptly now is by legislation. M$ and its buddies will be lobbying fiercely to have the patent laws explicitly accept software. Unfortunately for them, all software, except perhaps in a controller where the software cannot possibly have multiple uses, is abstract. That is to say, programmes written in a high-level language do not even deal with bits let alone reality. They deal in variables and data-structures, abstractions in themselves. If the legislators allow software patents, they will have to allow patents on abstractions, something they will not do or cannot. That would throw our thoughts and all freedom under the bus. Indeed, one brief they did not reference was about freedom of speech as software. Patents cannot be allowed to restrict freedom of speech.

Michael Barclay, a lawyer, wrote for the EFF that “The Supreme Court Declines to Prohibit Business Method Patents” (his chosen headline). APRIL, a French advocacy group for Free software wrote about this too and here is the summary from its statement which it titled “Bilski case: the United States starts to clean the software patents minefield”

The US Supreme Court has issued on Monday a ruling that many people had been waiting for in the so-called “Bilski” case1, regarding a patent on a business method. This decision, even though it does not exclude every software from patentability, invalidates a majority of them, including those patents on computer implemented intellectual methods. It is now time for European lawmakers to halt software patents’ proliferation in Europe.

The FSF’s Peter Brown looks at/accentuates the positives:

Bilski gave us a wonderful opportunity to increase awareness to the harm caused by software patents. More scholars, more developers, more journalists, more politicians, and more patent attorneys than ever before have heard from our community on this issue. What’s next?

So again we see an example of the FSF being positive, not negative. It is mostly constructive in its approach, contrary to claims from those who wish to daemonise the FSF. Yesterday we summarised some opinions from the SFLC's Professor Dan Ravicher. There is also a new summary at Groklaw, focusing on Stevens (whose role Ravicher did not particularly like because of cynicism). Pamela Jones argued about Stevens:

He’s actually read and absorbed James Bessen’s book Patent Failure and he comprehends the dangers and the costs that such patents present. Thank you, Jim Bessen (and co-authors Mike Meurer, Eric Maskin and Bob Hunt), for all your careful and helpful work, educating judges and lawyers to the dangers of software patents. Significantly, Stevens is joined by Justices Ginsburg, Breyer and Sotomayor. Even Justice Scalia, in a separate concurring opinion written by Justice Breyer, agreed that business methods should not be granted patents. That’s five Supreme Court judges. As Tom Goldstein of SCOTUSblog points out in his analysis of the Bilski opinion, that means that business methods patents survived by a single vote. And even at that, the opinion stated that few such methods should be granted a patent.

Here is another decent analysis from a legal blog. It’s outlined as follows: [via Digital Majority]

Sifting through the clues to patentability: Four take-home points from Bilski’s mixed bag

[...]

1) State Street Bank’s “useful, concrete, and tangible result” test is dead.

[...]

2) Abstract ideas likely include “basic concepts” and methods that can be reduced to a mathematical formula.

[...]

3) Parker v. Flook’s “field of use” and “postsolution activity” limitations are alive and well.

[...]

4) Expect more Section 101 challenges, especially at the early stages of patent litigation.

Rob Tiller from Red Hat (he too is a lawyer) wrote about this decision in a rush (Red Hat worked vigourously to eliminate software patents, unlike IBM).

Dana Blankenhorn correctly points out that Florian Müller is unfairly singling out IBM, as though IBM was the sole proponent of software patents.

Given the failure of the Bilski case to change the status quo regarding software and business method patents, the search is on for scapegoats, for weak sisters in the anti-patent fight who can be made open to criticism.

It is similar to what happens after a losing political campaign. Those most committed to the cause argue that it’s weak supporters, those willing to do business under the given circumstances, who are responsible for their political failure.

So it is that Florian Mueller of Fosspatents has seized upon IBM.

We have grown increasingly suspicious of Müller. He keeps trying to find ‘enemies’ other than Microsoft and then incite the “FOSS” crowd (as in “FOSSPatents” @ Blogspot) against that imaginary boogeyman. IBM is a favoured choice for a scapegoat due to its size, regardless of its many contributions to “FOSS”, which are very much appreciated. As one commenter puts it in Blankenhorn’s blog, “Now, I understand what Free Software is (as in Richard Stallman’s stance), and I understand what Open Source is (as in Eric Raymond’s stance). And isn’t the definition of FOSS is the union of Free Software and Open Source Software – i.e., F/OSS.

“Dana – what do you mean by FOSS? Are you confusing FOSS with Open Source?”

Florian defended proprietary software in Techrights comments; he is not a proponent of the “F” in FOSS, as even his lobby with MySQL helped to show. In many new posts about “interoperability” as the theme in the headlines (the word “interoperability” is used to dodge open standards), Müller continues to sing the same tune this week. About an hour ago he mailed me to incite against Apple at Microsoft’s expense. Typical. In his blog he currently promotes action and regulation against Microsoft adversaries.

As the old saying goes, Müller “has got some ‘splaining to do”. Only a mule would not change its stance when new information arrives and given what we have shown him about Microsoft, he continues to ignore Microsoft’s negative effects on “FOSS” (especially the “F”, which means freedom).

As the Bilski hype draws to a close, some go further and ask themselves about the impact as far as biotech patents are concerned (think Monsanto).

A Supreme Court ruling June 28 on idea patents disappointed those hoping for an overhaul of intellectual property claims for software, but it may inspire new patent tests aimed at the legally troublesome biotechnology field.

According to the court, the widely followed “machine-or-transformation” test — which limits patents to machines designed for a specific purpose, or processes that physically transform an object — is outdated. This test is also at the heart of at least two other legal cases currently being contested that could shape the future of the biotech business.

Patents on life? Why not? It’s good for lawyers. Apparently life counts as an “invention” now (if genes are perturbed in scarcely or totally misunderstood ways) to yield seemingly-desirable traits. Just ignore the side effects, much like in the patent system.

Glass filled

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 13/2/2016: Debian 6.0 EOL

    Links for the day



  2. The European Patent Office, Aloof/Apathetic to Inventors and Human Rights, Simply Cannot be Trusted With the Unitary Patent (UPC)

    The European Patent Office (EPO), once a source of great pride for increasingly-unified Europeans, not only wants to enjoy impunity but also wants to attain new powers, despite demonstrating that its interests are anything but European and are often detrimental to Europeans, not just to European inventors



  3. Feedback About Battistelli's 'Meet the President' Event in Rijswijk (4th of February, 2016)

    President of the EPO, the self-absorbed Battistelli, as described by those who attended his self-glorification event earlier this month



  4. Microsoft Continua Usando Patentes de Software para Extorsionar/Chantajear Incluso Más Compañías que Usan Linux, Forzandolas/Coerciendoles a PreInstallar Basura de Microsoft

    Acer es el último gran OEM que se ha convertido en la caza de brujas por parte de Microsoft contra preinstalladores de Android/Linux, a quienes esta coerciendo en convertirse en transportistas de Microsoft (o enfrentarse a litigaciones sobre patentes de software, con altos costos legales sino bloqueos con altísimos costos por arreglos secretos).



  5. Nuevas Protestas Contra La Vil OEP en Medio de Crisis Nerviosa de su Empleado Español (Después del Matoneo Institucional de Los Chacales de Battistelli), España Rechaza la Patente Unitaria UPC

    Enfrentando enorme presión de no-tecnicos Eurocráticos como Battistelli, España permanece FUERTE y RESISTE la Corte Unitaria de Patentes (UPC), que pone más poder en las manos de un cuerpo ABUSIVO que grotescamente discrimina contra los Españoles.



  6. Sólo Media Docena de Patentes Cubana Registradas en la OEP, Pero el Trístemente Célebre Battistelli Va a Cuba a Acumular Apoyo Baráto

    Ahora que España esta antagonizando a la OEP (y especialmente la UPC) el Presidente de la OEP ayuda a crear piezas de hojaldre en español cuando visitó Cuba y sus vecinos hispano-hablanetes que históricamente son renombrados por su gobernabilidad desaparecida así como su ilegalidad (como la OEP misma)



  7. In Lawyerland, Simulated UPC 'Trials' and More Extraordinary EPO Propaganda for Change That Would Harm Europe to Help Patent Lawyers and Their Big Clients

    A look at the latest wave of lobbying for the Unitary Patent Court (UPC), courtesy of patent lawyers who profit from patent disputes, and the utterly shameless marketing from the European Patent Office (EPO)



  8. Apple and Microsoft Cannot Keep Up With Android (Linux), More Layoffs Reported

    Having failed to grow (in the operating systems market share sense), proprietary software giants lose loyalty, try to attack the winner (Android/Linux) with software patents, and inevitably make their staff redundant



  9. Links 12/2/2016: Russian's Government With GNU/Linux, India's Wants FOSS

    Links for the day



  10. New EPO Protests Amid Nervous Breakdowns of Spanish EPO Employee (After Institutional Bullying by Battistelli's Goons), Spain Rejects the Unitary Patent (UPC)

    In the face of enormous pressure from non-technical Eurocrats like Battistelli, Spain remains strong and resists the Unitary Patent Court (UPC), which puts more power in the hands of an abusive body that grossly discriminates against Spaniards



  11. Only Half a Dozen Cuban Patents Filed at EPO, But Hugely Unpopular Battistelli Goes to Cuba to Garner Cheap Support

    Now that Spain is antagonising the EPO (and especially the UPC) the President of the EPO helps create some puff pieces in Spanish as he visits Cuba and neighbouring Spanish-speaking nations which are historically renowned for defunct governance and lawlessness (like the EPO itself)



  12. Nepotismo de la UPC, Abusos Políticos, y el Envolvimiento en la UPC de la Firma ¨Legal¨ que la OEP Contrato para Matonear a Techrights

    La Corte Unitaria de Patentes UPC, un sistema arregaldo esta siendo embestida por la gargant de Europa por la OEP. (Nos están metiendo la yuca). Sus grandes clientes (incluso extranjeros), con sus abogados de patentes para que todo el mundo los vea.



  13. Miembro del Parlamente Europe Resalta ¨Las Continuas Violaciones de los Fundamentales Derechos de los Empleados de la OEP¨

    Pregunta a la Comisión Europea de parte de la MEP Portuguesa Ana Gomes, publicado en el sitio del Parlamente Europeo.



  14. Links 11/2/2016: LibreOffice 5.1, HMRC and FOSS

    Links for the day



  15. Microsoft Continues to Use Software Patents to Extort/Blackmail Even More Companies That Use Linux, Forcing/Coercing Them Into Preinstalling Microsoft

    Acer is the latest large OEM to have become a victim of Microsoft's witch-hunt against Android/Linux preloaders, whom Microsoft is coercing into becoming Microsoft's carriers (or face litigation over software patents, with high legal fees if not injunctions or high damages upon secret settlements)



  16. EPO Brain Drain (Even Directors Fed Up With Team Battistelli) and Rumours About Battistelli Becoming President of the UPC

    Words heard through the grapevine of the European Patent Office (EPO), where staff is overwhelmingly against the managers and some people, including high-profile staff, add to the exodus



  17. More Than 20 Years in the Line: European Patent Office and Claims of European Convention on Human Rights Infringement Against Applicants/Stakeholders

    Gross incompetence and potentially an infringement of the European Convention on Human Rights at the European Patent Office (EPO), this time impacting an applicant (one of many in a similar position)



  18. UPC Nepotism, Political Abuses, and UPC Involvement From the Legal Firm That EPO Hired to Bully Techrights

    The Unitary Patent Court (UPC), a rigged system that is being rammed down Europe's throat by the EPO, its big clients (even foreign), and their patent lawyers laid bear for people to see



  19. Member of European Parliament Brings Up “Ongoing Violations of the Fundamental and Employment Rights of the Staff of EPO”

    Question to the European Commission from Portuguese MEP Ana Gomes, as published in the site of the European Parliament



  20. La Oficina Europea de Patentes Pretende que No Pasa Nada y Prepara una Feria de Vanidad

    La estrategia de relaciones públicas de la OEP cuya destructiva estrategia de patentes continua sin disminución (por ahora), se engancha en Colombia y se esfuerza en manufacturar el mito donde el público, examinadores de patentes, y aplicantes de patentes todos estan muy felices con la OEP.



  21. La ‘Internacional’ Commisión de Comercio Impone/Reenfuerza Patentes de Software para Establecer Otro Embargo

    La Comisión Internacional (sic) de Comercio se esta entrometiendo en competición de nuevo permitiendo a un gigante de los Estados Unidos Ciso en este caso, a potencialmente bloquear rivales (no importaciones del extranjero) usando patentes de software.



  22. Links 9/2/2016: Linux in Robotics, Hyperledger Project

    Links for the day



  23. Besieged Benoît Battistelli Mimics 'Damage Control' Tactics of FIFA or Blatter as More Judges Start Getting Involved in EPO Scandals

    Rumours and a new rant from Battistelli reinforce suspicions that actions are being organised behind the scenes, possibly as part of an upcoming, high-level campaign to unseat/dethrone Battistelli, who has become a reputational disaster to the European Patent Office (EPO), much like Sepp Blatter at FIFA



  24. Several Political Parties Directly Challenge the European Patent Office for Ignoring the Law, Not Obeying Court Orders

    Politicians make it crystal clear that the EPO, despite its unique status, cannot just raise its nose at the rulings of courts of law, definitely not in Dutch territory where the EPO operates



  25. Even the Legal Community is Upset at Benoît Battistelli for the Damage He Did to the EPO

    A recent article from lawyers' media (in German) speaks of the great damage (or mess) left by its current president, who has become somewhat of a laughing stock and growingly synonymous with farcical trials even in the circles of stakeholders, not just his own staff



  26. EPO Union (SUEPO) Getting Busted: “More and More People are Joining the Union, but Fewer and Fewer People Dare to Take on Leading Positions There.”

    The union-busting actions taken by EPO management in collaboration with Control Risks (for weak accusations against staff representatives) and FTI Consulting (for 'damage control') as described in a recent article, in the words of SUEPO lawyer Liesbeth Zegveld



  27. Microsoft's Copyrights- and Patents-Based Attacks on GNU/Linux Carry on

    The SCO case is still going on and Microsoft has just signed a patent deal with GoPro over its FOSS-based software, relating to “certain file storage and other system technologies”



  28. The EPO's Benoît Battistelli is the Dictator Who Can No Longer Dictate Like He Used to

    The European Patent Office's mechanism of oversight is starting to work just a little because, based on a new report from Juve, Battistelli is now reluctant to make proposals that would prove unpopular among delegates



  29. La Más Detallada Explicación (hasta ahora) de ¿Qué esta mal con la OEP?

    La insistencia de la OEP que permanece arriba de la ley no sólo est bajo fuego en los medios pero también esta siendo desafiada basado en personas familiares con la aplicabilidad de la ley a organizaciones internacionales.



  30. Links 8/2/2016: Vista 10 Nags Help GNU/Linux, Nautilus Updated

    Links for the day


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts